Citation NR: 9629402
Decision Date: 10/17/96 Archive Date: 10/30/96
DOCKET NO. 94-14 747 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Houston,
Texas
THE ISSUE
Entitlement to service connection for the cause of the
veteranís death.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
John Z. Jones, Associate Counsel
INTRODUCTION
The veteran served on active duty from November 1942 to
August 1945.
This matter is before the Board of Veterans' Appeals (Board)
on appeal of a June 1993 rating decision of the Houston,
Texas, Department of Veterans Affairs (VA) Regional Office
(RO), denying service connection for the cause of the
veteranís death. The RO awarded an increased rating of 30
percent for the service connected skin disorder, effective
September 11, 1992. The RO denied service connection for a
malignant skin disorder, tuberculosis luposa and dermatitis
exoliatura. The RO notified the appellant of these
determinations on July 2, 1993; the appellant appealed only
the issue of service connection for the cause of the
veteranís death. 38 C.F.R. ß 20.302 (1995).
In the present case, the Board developed additional medical
evidence subsequent to the Statement of the Case. In
accordance with Thurber v. Brown, 5 Vet.App. 119, 126 (1993),
the Board notified the appellant's representative in a
September 1996 letter of the additional evidence developed
and provided an opportunity to respond. The appellant's
representative responded that there was no further evidence
or argument to present. The case is now ready for review.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant contends the veteranís was treated with massive
amounts of Vitamin A, resulting in sepsis and/or renal
failure and ultimately causing or contributing to his death.
The appellant's representative contends the veteranís severe
skin condition could have infected his blood stream causing
him to have a massive staff infection which hastened his
death.
DECISION OF THE BOARD
The Board has reviewed the evidence in the veteran's claims
file. Based on that review, it is the decision of the Board
that a preponderance of the evidence is against the claim of
service connection for the cause of the veteranís death.
FINDINGS OF FACT
1. The medical questions presented are complex requiring an
independent medical expert opinion, and that opinion
adequately addresses the cause of the veteranís death in
relation to his service-connected for keratosis follicularis
(Darierís disease); all relevant evidence has been obtained.
2. The veteran died on November [redacted] 1992, at the age of 68.
The certificate of death lists the immediate cause of death
as bronchogenic cancer due to chronic renal failure and
sepsis. No autopsy was performed.
3. At the time of his death, the veteran was service-
connected for keratosis follicularis (Darierís disease) rated
as 10 percent disabling.
4. Disabilities of the kidneys and lungs were first shown
many years after service and these disorders are not shown to
be etiologically related to service or a service-connected
disability.
5. The veteranís service-connected skin disorder was not the
principal cause of the veteran's death, nor did it contribute
substantially or materially to his death.
CONCLUSIONS OF LAW
1. Kidney and lung disorders were not incurred in or
aggravated during
service, nor may they be presumed to have been incurred
therein. 38 U.S.C.A. ßß 1101, 1110, 1112, 1113, 5107 (West
1991); 38 C.F.R. ßß 3.303, 3.307, 3.309 (1995).
2. An independent expert medical opinion is warranted in
this case. 38 C.F.R. ß 3.328(a) (1995).
3. A service-connected disability did not cause the
veteran's death or contribute substantially or materially to
cause his death. 38 U.S.C.A. ßß 1310, 5107 (West 1991); 38
C.F.R. ß 3.312 (1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Initially, it is necessary to determine if the appellant has
submitted a well-grounded claim within the meaning of 38
U.S.C.A. ß 5107(a), and if so, whether the VA has properly
assisted her in the development of her claim. A "well-
grounded" claim is one which is plausible. A review of the
record indicates that the appellant's claim is plausible.
The evidence shows the veteran was treated for numerous
debilitating medical disorders for at least several years
prior to his death. Given the numerous diagnoses and the
medical records showing continued treatment for the veteranís
service-connected skin disorder, which some medical examiners
described as a rare condition, the Board finds the questions
presented are so complex requiring an independent medical
expert opinion. In July 1996, the Board requested an
independent medical expert opinion from a specialist in
nephrology. The opinion adequately addresses the cause of
the veteranís death in relation to his service-connected for
keratosis follicularis (Darierís disease). The August 1996
opinion of the independent expert medical is warranted in
this case. 38 C.F.R. ß 3.328(a). The Board finds that all
relevant facts have been properly developed.
At the time of his death, the veteran was service-connected
for keratosis follicularis (Darierís disease) rated as 10
percent disabling.
The relevant facts are summarized as follows: The veteranís
service medical records contain no complaints, findings or
diagnoses of a kidney or lung disorder. The first mention of
renal insufficiency was in February 1987 when the veteran was
admitted to a VA hospital for inflammation of Darierís
disease. The first mention of a lung disorder was in March
1990 when a private physician made diagnoses of chronic
bronchitis, pulmonary fibrosis and emphysema. These
physicians do not relate these disorders to active service or
secondary to a service-connected disability. As the evidence
does not show kidney or lung disease during active service,
during the initial post-service year, or manifestations of
kidney or lung pathology until the 1980ís and 1990ís, without
any competent medical evidence relating these post-service
disorders to active service or secondary to a service-
connected disability, the Board finds no basis for the grant
of service connection for these disorders; therefore, no
basis for service connection for the cause of the veteranís
death due to these disorders. 38 U.S.C.A. ßß 1110, 1112,
1113; 38 C.F.R. ßß 3.303, 3.307, 3.309, 3.310(a).
The next question is whether the veteranís service-connected
skin disorder contributed substantially or materially to
cause death. If so, service connection will be established
for the cause of the veteranís death. 38 U.S.C.A. ß 1310;
38 C.F.R. ß 3.312. The appellant essentially contends that
massive doses of Vitamin A, which the veteran received for
his service-connected skin disorder, caused sepsis and/or
chronic renal failure and ultimately contributed
substantially or materially to cause his death.
The service medical records show that in November 1944 the
veteran was diagnosed with Darierís disease. He was
initially treated with cod liver oil and multi-vitamins, but
significant improvement did not occur until May 1945 when he
was placed on massive doses of Vitamin A (150,000 units per
day). The veteran was examined by the VA in March 1948.
Clinical evaluation of the respiratory and genitourinary
system was normal. Examination of the skin showed papular
eruptions with some excoriations on the back, chest, across
the forehead and on the sides of the neck. The diagnosis was
moderately-severe Darierís disease. On VA examination in
March 1951, clinical evaluation of the respiratory and
genitourinary systems was again normal and urinalysis was
negative for sugar and albumin. On special dermatology
examination, the veteran stated he took 150 units of Vitamin
A daily and that his skin condition got worse when he
stopped. Examination of the skin revealed no evidence of
discomfort such as excoriation. The diagnosis was keratosis
follicularis.
In February 1987, the veteran was seen at a VA facility for
inflammation of Darierís disease. He reported he had stopped
taking Vitamin A because he was told he had renal
insufficiency secondary to Vitamin A toxicity. He also
stated he had recently undergone an abdominal aortic aneurysm
resection. The next day, the veteran was admitted to a VA
hospital with a history of Darierís disease, chronic renal
failure and hypertension. Dermatological assessment was
chronic Darierís disease and Retin-A gel was prescribed. On
renal consultation, laboratory studies showed BUN 48,
creatinine 3.7, and albumin 3.6. A renal sonogram showed 3
simple cysts in the left kidney, the largest measuring 1.4
centimeters, and 3 simple cysts in the right kidney, the
largest measuring 2.6 centimeters. A chest X-ray was within
normal limits. The examiner stated that the veteranís
chronic renal insufficiency was most likely due to acute
renal failure at the time of the ruptured abdominal aortic
aneurysm in January 1987, or secondary to hypertension or
renovascular disease. He doubted that the veteranís chronic
renal insufficiency was secondary to Vitamin A intake. The
examiner also noted the conclusions of the veteranís private
physician, insofar as the private physician stated the
veteran had developed acute renal failure at the time of the
abdominal aortic aneurysm rupture in January 1987, and that
chronic renal insufficiency was probably secondary to
hypertension. The record shows that the skin condition
improved over the next several months with Retin-A gel. In
April 1987, laboratory tests consistent with renal
insufficiency were improving and liver function tests were
within normal limits.
A VA examination was conducted in August 1987. On
dermatology examination, the veteran stated he had taken
150,000 units of Vitamin A daily for ten years, and increased
to 300,000 units a day until a year ago when he was told to
stop taking Vitamin A because it affected his liver and
kidneys. Physical examination showed numerous pinhead size
follicular plugs with erythematous base all over his body,
face and scalp. The diagnosis was moderately severe Darierís
disease. On general medical examination, urinalysis revealed
4+ protein and trace occult blood; the microscopic
examination of this specimen revealed 0-to-2 white blood
cells and no red blood cells. Chest X-ray revealed
calcification in the lateral chest wall low in the right
hemithorax and in the mid-lung field on the left. The lungs
appeared somewhat emphysematous with low flat diaphragms and
shallow costophrenic angles. In November 1987, the veteran
began a course of Etrectinate for control of skin condition.
A VA outpatient treatment record dated in January 1989 notes
the veteran stopped taking Etrectinate in October 1988 due to
an in-hospital stay for renal failure. In June 1989, a
private physician reported treating the veteran six months
earlier when the veteran was hospitalized for dyspnea and
chest pain which was thought to be related to coronary
disease. The physician indicated the veteran had been
treated medically only because of concerns regarding renal
function. In July 1989, the veteran was put back on
Etrectinate with subsequent improvement in his skin condition
noted. In March 1990, a private physician examined the
veteran and made diagnoses of chronic bronchitis, pulmonary
fibrosis and emphysema. In August 1990, the veteran was
admitted to a VA hospital for insertion of an impragraft in
his arm. At the time of discharge, BUN was 69. In 1991, the
veteran began dialysis for kidney failure.
A private hospital summary shows the veteran was hospitalized
beginning in May 1991 for fever, chills and an extensive rash
all over his body. Pertinent medical history included
Darierís disease which had become progressively worse over
the past four to six weeks. On examination, the veteranís
respiratory rate was 26 and his chest was clear to percussion
and auscultation. Laboratory tests showed BUN and creatinine
of 47 and 7.7. The examinerís impressions included fever
with chills, rule out sepsis, source may be the skin. That
examiner recommended treatment with antibiotics. During
hospitalization the veteran was also evaluated for chronic
renal failure and received three weekly dialysis treatments.
He was discharged on medications and instructed to follow-up
in the dialysis clinic.
The veteran was hospitalized again in March 1992 for
investigation of a right upper lobe infiltrate that had been
progressing in size. History included hypertension, renal
disease, hemodialysis, chronic obstructive pulmonary disease
(COPD), keratosis follicularis and coronary artery disease
(CAD). At that time, the veteran had end-stage renal
disease. While in the hospital, a computerized tomography
(CT) scan showed an inflammatory process in the right upper
lobe consistent with tuberculosis. In the hospital summary,
the physician stated that the renal failure was secondary to
hypertension which led to nephrosclerotic disease.
Laboratory studies revealed BUN and creatinine of 37 and 7.1.
A bronchoscopy was also performed. Laboratory studies in May
1992 revealed BUN 36 (normal: 5-25) and creatinine 7.5
(normal: 0.5-1.5). Although culture taken from the upper
right lobe were negative for tuberculosis, the impression in
May 1992 was probable pulmonary tuberculosis.
The veteran was hospitalized in June and July 1992 for
continued medical problems, including chronic renal failure,
surgery for an infected left vascular access graft and
gastrointestinal bleeding. The impressions in one of the
medical summaries included a diagnosis of Darierís disease
with extensive skin involvement and recurrent episodes of
sepsis. In early July 1992, the veteranís fever continued
and at that time his physician suspected a malignancy.
Diagnostic testing showed a mass in the right hilum which
appeared to be consistent with malignancy. A subsequent
biopsy of cells from the right lung showed moderately
differentiated squamous cell carcinoma. In August 1992, the
veteran was again admitted because of a clotted vascular
access. These private records show essentially continuous
treatment for the veteranís multiple problems, including
fever. In late October 1992, the veteran was readmitted to
the hospital with progressive weakness, purulent drainage
from the right arm, increased dyspnea, anorexia and
disorientation. These records relate a past medical history
significant for atherosclerotic heart disease, COPD,
carcinoma of the lung for which he was receiving radiation
therapy, chronic renal failure secondary to acute renal
failure and multiple episodes of clotted vascular access.
One of his treating physicianís also recorded the history of
Darierís disease and described it as a rare condition which
had probably predisposed the veteran to getting multiple
episodes of infected vascular access. The remaining hospital
records dated into November 1992 show the veteranís condition
deteriorating due to the multiple medical problems.
The veteran died on November [redacted] 1992, at the age of 68. The
certificate of death lists the immediate cause of death as
bronchogenic cancer due to underlying chronic renal failure
and sepsis. No autopsy was performed.
In July 1996, the Board requested an opinion from an
independent medical expert (IME) in the field of nephrology.
The Board requested the IME to provide an opinion as to what
was the most likely cause of the veteranís chronic renal
failure. The Board also requested the IME to provide an
opinion whether medications prescribed for the veteranís
service-connected skin condition contributed to chronic renal
failure. In response to the request Dr. J.A.W., Professor of
Clinical Medicine, Division of Nephrology, University of
Medicine and Dentistry of New Jersey, Robert Wood Johnson
Medical School, responded in a letter dated in August 1996.
Regarding the first question, the IME stated that ďalthough
keratotic disease is well described in patients with chronic
renal failure, I know of no reports suggesting an etiologic
role for Darierís disease in chronic renal insufficiency.Ē
The IME speculated that it is possible that a nephritogenic
bacterial superinfection of the veteranís skin lesions may
have precipitated glomerular damage, but evidence in the
claims folder did not support such speculation. Regarding
the second question, the IME stated that he ď[did] not
believe that the use of Vitamin A derivatives contributed
significantly to the [veteranís] renal disease.Ē The expert
did note that patients with chronic renal failure are
susceptible to hypervitaminosis A when Vitamin A preparations
are prescribed. However, he stated that he was ďunaware of
any convincing body of evidence to support the speculation
that chronic Vitamin A therapy is in itself nephrotoxic.Ē
The opinion of the IME is the persuasive evidence in this
case. The IME is an expert in the field of nephrology and he
is the only physician in the present case that had the
opportunity to review and analyze all the medical evidence of
record. It is not contended that the veteranís bronchogenic
cancer is related to service or either secondary to the
service-connected skin disorder or long-term use of Vitamin A
or other medication used to treat Darierís disease. There is
also no medical support for such conclusions. Likewise, the
veteranís treating physicians did not conclude that the
veteranís chronic renal failure was caused by the chronic
skin disease. In fact, the medical opinions of record
suggest the veteranís chronic renal insufficiency was most
likely due to acute renal failure at the time of the ruptured
abdominal aortic aneurysm in January 1987, or developed
secondary to hypertension or renovascular disease. There is
also a medical statement that expresses doubt that the
veteranís chronic renal insufficiency was secondary to
Vitamin A intake. The IME clearly rules out a direct
etiologic relationship between the veteranís skin disease and
the development of chronic renal insufficiency. The IME also
rules out an etiologic relationship between the veteranís use
of Vitamin A and the chronic renal disease. It is not
disputed that chronic renal failure was an underlying cause
that contributed substantially and materially to the
veteranís death; however, the persuasive medical evidence
shows that it was not due to the veteranís service-connected
disability or long-term use of Vitamin A used to treat his
skin disorder.
The appellant argues the veteranís renal failure was brought
on by the treatment of his service-connected skin condition
with Vitamin A. This is a question that involves medical
expertise. Unfortunately, the appellant is not trained in
medicine and, as a layperson, she is not competent to offer
an opinion involving medical causation. Espiritu v.
Derwinski, 2 Vet.App. 492, 494 (1992) (holding that lay
persons are not competent to offer medical opinions). The
representative argues that one of the veteranís treating
physicians noted in October 1992 the veteranís service-
connected skin disorder is a rare condition which had
probably predisposed the veteran to getting multiple episodes
of infected vascular ďabscess.Ē Initially, the Board notes
that the private physician referred to the term ďaccess.Ē
For example, an ďarteriovenous accessĒ is the means by which
a hemodialysis apparatus is connected to blood vessels.
Dorlandís Illustrated Medical Dictionary, p. 10 (28th ed.
1988). The medical reports also show that the veteran had
recurrent episodes of clotted vascular access. While the
physician noted the veteran was predisposed to the infected
access, that physician specifically related the infected
access to the skin disorder, he did not offer any suggestion
that this contributed materially or substantially to death,
or that the infected access contributed by hastening death or
rendering the veteran incapable of withstanding the impact of
the cancer, renal insufficiency or sepsis. The examiner in
May 1991 presented only the possibility that the source of
the veteranís fever and chill may be the skin and that
examiner proved no opinion of a direct causal relationship.
The hospital records just prior to the veteranís death show
treatment with antibiotics for high grade fever. The report
states that blood cultures taken to rule out sepsis were all
negative and the site of infection was clearing. The
antibiotics were discontinued and the fever resolved. In
addition, there is no medical suggesting Vitamin A treatments
caused sepsis or that the service-connected skin condition
caused an infection in the veteranís blood stream.
The Board finds the veteranís service-connected skin disorder
was not the principal cause of the veteran's death, nor did
it contribute substantially or materially to his death. The
evidence is not evenly balanced in this case, and the Board
concludes that a service-connected disability did not cause
the veteran's death or contribute substantially or materially
to cause his death. 38 U.S.C.A. ßß 1310, 5107; 38 C.F.R. ß
3.312.
ORDER
Entitlement to service connection for the cause of the
veteranís death is denied.
R. E. COPPOLA
Acting Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, ß 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. ß 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, ß 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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